A federal judge overseeing the first nationwide trial involving sudden, unintended acceleration has tentatively issued a sanction against Toyota, concluding that the company’s failure to contact a lawyer for the victims of a 2010 car crash before inspecting the vehicle cast a “cloud of suspicion” over its behavior.

U.S. District Judge James Selna issued a tentative order on May 30 finding that Toyota had violated his order to preserve data by failing to contact a lawyer for the crash victims before conducting the inspection.

“It is clear that Toyota understood it was in a pre-litigation phase when it inspected the Van Alfen vehicle,” he wrote, referring to the deceased driver, Paul Van Alfen. “It is equally clear that Toyota understood that the Van Alfen family was represented by counsel … They were simply not given the opportunity to be present. These facts alone cast a cloud of suspicion over the November 19, 2010 inspection.”

However, he also found no evidence that Toyota had engaged in the “Machiavellian conduct” of altering data during the inspection. As a result, he concluded that a jury instruction would be appropriate, but didn’t divulge exactly what it would say — other than he might order a shift in the burden of proof. The case is scheduled to go to trial on Feb. 19, 2013.

During a hearing later the same day addressing the tentative order, Toyota attorney Vincent Galvin railed against Selna’s order, calling it “plain wrong”— unsupported by the facts and beyond the authority of the court.

“If I’d known then I’d be faced with a motion, and the court would base a sanction on a duty that doesn’t exist in the law, I would have done everything differently,” said Galvin, managing partner of the San Jose, Calif., office of Bowman and Brooke. “To put us in a position that affects our ability to defend the merits of this case because your honor thinks we should have made a call — that just isn’t correct. It’s not consistent with the law, and I think it’s beyond the discretion the court has.”

Toyota spokeswoman Celeste Migliore issued a statement following the hearing: “This motion by plaintiffs’ counsel should be seen for what it is: a baseless and desperate effort to dismiss clear and convincing evidence that devastates their case. This transparent attempt to raise doubts about the vehicle inspection process by fabricating a continuous stream of demonstrably false and misleading theories is entirely without merit. Toyota has clearly shown that the evidence at issue was appropriately preserved and that there was no corruption of the data from the vehicle’s Event Data Recorder.”

The device to which she referred is similar to an airplane’s “black box” and records what a car was doing at the time of a crash. Plaintiffs lawyer Mark Robinson — alleging the device was corrupted during the inspection — sought the extreme sanction of terminating the case through a default judgment that would allow plaintiffs to immediately seek damages.

Alternatively, he suggested a lesser sanction that would prevent Toyota’s use of evidence from the device, or a jury instruction in lieu of those two options.

The sanctions dispute was the latest roadblock in the first bellwether case in the multidistrict litigation against Toyota. The case involves a 2008 Camry that allegedly suddenly accelerated and crashed into an exit ramp wall in Utah, killing Van Alfen. Another passenger died at the hospital and two were injured.

In September, Toyota moved to dismiss the case on jurisdictional ground, arguing that it did not belong in federal court because the local dealership that serviced the vehicle was named as a defendant. The dealership was later dropped from the case, resolving the issue.

Selna did not finalize his tentative order during the hearing. Instead, he asked both sides to provide additional briefs regarding whether the case should remain as first in line.

“It seems to me that’s a fairly obvious question on the table given extended factual issues on both sides that are truly unique to Van Alfen,” Selna said.

He scheduled a hearing on that issue for June 13.

The first case to go to trial is important because its outcome could prove a harbinger for more than 200 additional cases pending in federal court in Santa Ana, Calif. About 100 of those involve personal injury or wrongful death; the rest deal with economic damages to Toyota customers.

Since the original sanctions motion was filed, both sides have filed a barrage of motions, replies and expert declarations concerning what happened on Nov. 19, 2010 — the day that Toyota and government regulators inspected Van Alfen’s car. The accident occurred on Nov. 5, 2010.

Robinson, a senior partner at Robinson, Calcagnie & Robinson in Newport Beach, Calif. and lead counsel on the plaintiffs steering committee for the personal injury and wrongful death cases in the multidistrict litigation, accused Toyota of violating a July 16, 2010, preservation order by inspecting the event data recorder without the plaintiffs’ consent or presence.

He said Toyota officials made no effort to contact Gerry Spence of The Spence Law Firm in Jackson, Wyo., who was representing the Van Alfen family, before conducting their inspection.

Four employees from Toyota’s legal department and an individual who worked as an outside contractor for the U.S. National Highway Traffic Safety Administration conducted the inspection about eight months after the various claims were coordinated following a series of recalls. Robinson maintains that the inspection corrupted data on the recorder and that Toyota officials altered the Van Alfen vehicle by removing a plastic part from the throttle body.

In court, Robinson argued that Toyota employees knew they lacked consent but were in a rush to complete the inspection, anticipating a lawsuit. “Toyota knew this was big,” he said. “You had two people that died in the accident and two other people taken to the hospital in the accident. They knew there was a preservation order from this court.”

Toyota’s attorney, Galvin, accused plaintiffs lawyers of manufacturing the sanctions dispute because the data showed that Van Alfen hadn’t stepped on the brakes and, in fact, that the vehicle had been decelerating before it crashed. Furthermore, he said, NHTSA, not Toyota, had first inspected the recorder, and the preservation order didn’t apply yet because plaintiffs hadn’t filed their suit.

“There’s absolutely no dispute that the data from the EDR [data recorder] was preserved,” Galvin said. “It was downloaded by NHTSA, by Toyota.”

He argued that the consent of the Van Alfen family wasn’t required and that NHTSA officials had informed Toyota that Utah Highway Patrol had obtained the family’s consent.

But in court, Selna appeared concerned about Toyota’s failure to get consent from the Van Alfen family or their lawyer.

“Wouldn’t you agree in hindsight it would be preferable for a lot of reasons for Toyota to advise counsel the Van Alfens had retained counsel for this inspection and afford them an opportunity to be present?” Selna said. “Aren’t ethical obligations apparent at the time?”

Galvin responded that Toyota officials had no idea who the lawyer was at that time.

“Come to find out it was the Spence Firm — we’re not talking about some storefront lawyer who didn’t know what was going on,” he said. “To suggest we prevented them, or had the ability to prevent them, from attending the inspection is just wrong.”

In addition, Selna focused on whether the data in the recorder had been corrupted. Robinson insisted that the data had been changed between the time of the initial probe and the most recent inspection last month.

In court, Galvin said it “ticked me off” that Selna didn’t consider in his tentative order evidence provided by Toyota that the data remained the same. “The crash data is frozen,” he said. “There was scant mention of it in the order.”

He disputed language in the order dealing with the plastic part that was removed from the throttle. In his tentative order, Selna suggested a jury instruction that says: “You should regard the testimony of the Toyota personnel who were present concerning the inspection of the valve and the condition of the valve with greater caution than that of other witnesses.”

Galvin suggested that Selna hold off on ordering that instruction. He called the testimony by plaintiffs’ experts “inconsistent” and inaccurate. He also said there is no evidence that the plastic piece was the cause of the accident.

When asked about the plastic part’s significance to the case, Robinson said he was waiting upon his experts for an answer.

In his tentative order, Selna said it was unclear from the record whether the plastic part played a significant role in the accident. He maintained that position in court.

“My current thought is to give the instruction. That’s why the proposed sanction on that issue is a rather mild one,” he said in court. But if the plastic part turns out to be a major factor in the accident, he said, the sanction “may well escalate.”

In a separate tentative ruling, Selna ordered that the Van Alfen vehicle undergo another inspection on June 5.

Contact Amanda Bronstad at abronstad@alm.com.